402 Remedying Conflict

402.1 General

  1. Notification of the SLTCO

    Where an actual or potential conflict of interest within the LTCOP has been identified, the SLTCO shall be notified in writing. All agents of the Department of Human Services, area agencies on aging (AAAs), LEs, and ORs have a duty to notify the SLTCO of any actual or potential conflict of interest of which they have knowledge. (45 C.F.R. § 1324.21(b))

  2. The SLTCO shall determine whether appropriate actions may be taken to sufficiently remedy the conflict. A conflict can be sufficiently remedied only where the existence of the conflict does not interfere with any duties of the LTCOP and where the conflict is not likely to alter the perception of the LTCOP as an independent advocate for residents.

402.2 Remedying organizational conflicts

Where organizational conflicts have been identified, the following steps shall be taken where the conflict can be sufficiently remedied:

  1. A written remedial plan shall be developed within thirty (30) calendar days of identification of the conflict to the SLTCO.

  2. The remedial plan must identify the conflict and provide assurances which shall minimize to the greatest extent possible the negative impact of the conflict on the LTCOP. Examples of such assurances could include, but are not limited to:

    1. The LTCOP will investigate complaints in an unbiased manner and independently determine actions to be taken in their resolution.

    2. No agency employee or governing board member with a conflict of interest will be involved with or influence any decision to hire or terminate the employment of an OR. (45 C.F.R. § 1324.21(b(2))(iv))

    3. Governing board members of the LE or AAA who have a conflict of interest:

      1. Must disclose the conflict to the governing board and to the SLTCO.

      2. May have no involvement with OR activities concerning the entity which is the source of the conflict.

      3. Must abstain from voting on issues related to the operation of the LTCOP.

    4. The agency’s policies and procedures adequately set forth procedures to remedy conflicts of interest and ensure that the ORs can fulfill their duties without interference.

    5. A memorandum of agreement exists between the LTCOP and another program which provides services with conflicting responsibilities. Such a memorandum must adequately set forth the roles, responsibilities, and appropriate working relationships of the respective programs.

  3. The remedial plan must be mutually agreed upon and signed by the agency in which the conflict exists and the SLTCO. If either party cannot agree to the plan, the conflict has not been sufficiently remedied.

402.3 Remedying individual OR conflicts

Where individual conflicts have been identified, the following steps shall be taken where the conflict can be sufficiently remedied:

  1. Development of a written remedial plan

    1. Where the individual is an applicant for a position as an OR, a plan shall be developed before the individual is hired for the position. (45 C.F.R. § 1324.21(d)(2))

    2. Where the individual is an applicant as an OR volunteer, a plan shall be developed before the individual takes any actions on behalf of the LTCOP.

    3. Where the individual is an OR staff or volunteer, a plan shall be developed within thirty (30) calendar days of identification of the conflict to the SLTCO. (45 C.F.R. § 1324.21(d)(2)(iv))

  2. The remedial plan must identify the conflict and provide assurances which shall minimize to the greatest extent possible the negative impact of the conflict on the LTCOP. An example of such an assurance could include:

    1. Prohibiting the OR with a conflict of interest from serving the residents of the facility with which he/she has a conflict and arranging for another staff OR to serve those residents. Where appropriate, this arrangement could be time limited.

  3. The remedial plan must be mutually agreed upon and signed by:

    1. The LE, the OR or applicant with the conflict of interest.

    2. The ORC.

    3. The SLTCO.

  4. Volunteer Visitors are not permitted to serve residents in facilities with which they have a conflict of interest. The SLTCO may delegate to an ORC the authority to:

    1. Consider the conflicts of interest of an individual who wishes to serve as a Volunteer Visitor.

    2. Determine whether conflicts exist which may impede the ability of the Volunteer Visitor to fulfill the duties of that position or may alter the perception of the LTCOP as an independent advocate for residents. If such a conflict exists, the individual cannot serve as a Volunteer Visitor.